Grievance procedure and constructive dismissal

What is a grievance?  A grievance is any feeling of dissatisfaction from an employee regarding the employer, working environment, fellow employees, clients of the employer or any other aspect of the employment relationship. Dissatisfaction with regards to conditions of employment, remuneration, enforcing of discipline, or retrenchment, are not considered grievances and therefore cannot be addressed by the grievance procedure.

Dealing with a grievance

Every employee, irrespective of employee’s position, has the right to lodge a grievance. Lodging a grievance should occur without fear of victimisation or retaliation, regarding a situation that has a negative impact on the employment relationship or work environment. Employees are, however, often reluctant to lodge a grievance, which contributes to unhappiness and an unsatisfactory work environment which in turn may lead to a decrease in productivity and in extreme causes result in the employee’s resignation.

All employers, regardless of size or number of employees, should implement a grievance procedure. This procedure should preferably be in writing and readily available and accessible to all employees.

Grievance procedure

The purpose of the grievance procedure is to firstly create a harmonious working environment by identifying and resolving any dissatisfaction or feeling of injustice from employees in a timeous and efficient manner.  Secondly, the grievance procedure protects the employer in cases of constructive dismissal. In such a case, the commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) will always ask if there was a grievance procedure that the employee could have followed. Constructive dismissal refers to when an employee resigns due to unbearable working conditions.

Typically, a grievance procedure policy should include the following:

• Step 1:  The employee must file a grievance in writing with the employee’s immediate supervisor/ line manager within two days after the incident.  If the grievance is against the employee’s immediate supervisor or manager, the employee must refer the grievance to the next level of seniority.  The employee may be assisted or represented by a co-employee.

• Step 2:  If the grievance is not resolved within two days, the grievance must be referred officially to the next level of seniority e.g. department manager.

• Step 3:  If the grievance is not resolved within two days, the grievance must be referred officially to the next level of seniority e.g. human resource manager.

• Step 4:  If the grievance is not resolved within two days, the grievance must be referred officially to the highest level of seniority e.g. the Director.  The employer must investigate the grievance and make a finding within five days.  The employer’s finding is final and binding.

Constructive dismissal: the possible consequence of ignoring a grievance

Section 186(1)(e) of the Labour Relations Act defines constructive dismissal as the termination of employment at the instance of an employee with or without notice due to continued employment having been made intolerable by the employer.

In the event of grievances not being addressed by an employer by the application of a well-structured grievance procedure, it may lead to the resignation of an affected employee and thereafter a claim of constructive dismissal.

In the matter of Albany Bakeries Limited v Van Wyk and Others the Labour Appeal Court emphasised the importance of an employee exhausting reasonable alternatives to resignation.  Therefore, the adoption of a formal grievance procedure that is known to and communicated to employees will serve to not only resolve grievances of employees but also protect employers from possible claims of constructive dismissal by employees in that the employer will be able to show that a proper procedure was in place and followed after a grievance was lodged by an employee.

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